1 Product Liability, Insurance and the Private Regulation of Food Safety 1 Tetty Havinga (Working Paper Institute for Sociology of Law, Radboud University Nijmegen, October 2007) Most research on food safety has focussed on direct forms of food safety regulation. This paper explores the opportunities for product liability to encourage food safety measures within firms. It aims to contribute to the discussion on the role public and private actors could have in providing an effective food safety system. Liability law is assumed to promote food safety. The author distinguishes three ways in which liability law could act as an incentive for firms to implement enhanced food safety controls: liability claims, liability insurance and direct effects of liability law on management strategy. The paper concludes that the assumption that liability laws make firms sensitive to prevention of food safety risks is too optimistic. However, liability law could stimulate a culture within forms where firms take responsibility for food safety. Introduction In food safety regulation, as in other domains of regulation, the traditional command- and-control form of regulation has been criticized. Transnational and national governments as well as the food industry and retailers are exploring new ways to deal with food safety regulation. Many of these new forms of regulation are characterised by a mix of public and private organisations involved in rule-making, monitoring compliance, and enforcement. Henson & Caswell (1999) distinguish between direct and indirect regulation of food safety (see figure 1). Direct regulation entails prescriptions and requirements for the production and handling of food to assure the production of safe food. Even though indirect regulation does not provide prescriptions for the production and product, it is nevertheless expected to act as an incentive to implement food safety controls. Most research on food safety has focussed on direct forms of food safety regulation. Figure 1: Types of regulation of food safety Character of the rules Source of the rules Direct Indirect Public Dutch Commodities Act (NL Warenwet) 2 Food Safety Act (UK) General Food Law 3 (EU) Product liability 4 TBT-GATT agreement 5 Public-private Industrial hygienic code Insurance policy Private Private food safety certification scheme Consumer complaint proceedings 1 An earlier version of this paper was presented at the 2007 International Conference ‘Law and Society in the 21 st Century’, Berlin, July 25-28. 2 Dutch Law of 19 September 1919 (Stb. 581, latest change Stb. 2001, 601). 3 Regulation EC no. 178/2002 of 28 January 2002 laying down the General Principles and Requirements of Food Law, Establishing the European Food Safety Authority and Laying down procedures in matters of food safety. Official Journal of the European Communities 2002 L31/1-24. 4 Art. 185-193 bk 6 BW. 5 GATT Agreement on Technical Barriers to Trade (TBT).